When an injured worker in Pennsylvania goes back to work, at least with restrictions, he or she has some protection if the work comes to an end. An issue recently addressed by the Commonwealth Court of PA is whether the job one looks at (to determine whether there are physical restrictions) is the job one held at the time of the injury, or the one held when the job is lost.
In Dougherty v. Workers' Compensation Appeal Board (QVC, Inc.), the injured worker was employed as a video producer who suffered a tear of his Achilles tendon. After the injury, he was unable to physically do the regular duties of a video producer, but his employer took him back on a restricted basis, then reassigned him to a writer-producer position (which had much less physical demand). Unfortunately, the injured worker did not have the requisite skills to do the work of a writer-producer, and he was terminated for unsatisfactory work performance.
The injured worker filed a Petition for Reinstatement, which was litigated before a Workers’ Compensation Judge (WCJ). After hearing the evidence, the WCJ denied the Reinstatement Petition. Though the WCJ found that Claimant remained physically incapable of performing the pre-injury job (video producer), the WCJ determined that he was physically able to do the writer-producer job, and the reason he was again losing wages was not due to the work injury. This was affirmed by the Workers' Compensation Appeal Board (WCAB).
On appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was reversed. The Court found that whether the injured worker could perform the restricted, post-injury, job was not the key factor; instead, one must look at whether he was capable of performing the pre-injury position without restriction. Since the WCJ found that he remained incapable of physically performing the pre-injury job, the injured worker was entitled to a presumption that his ongoing loss of wages was due to the work injury.
Though the Court remanded back to the WCJ to make the ultimate determination (since the WCJ is the proper Finder of Fact), the Court did note that mere incompetence, or genuine inability to do the restricted duty job, would not prevent a reinstatement of benefits. Unless there is bad faith, workers’ comp benefits should be reinstated. As the Court noted, citing a prior decision, “if claimant shows he would if he could, the bad faith threshold is not met.”
This case helps address the risk an employee has when he or she tries to go back to work on a modified basis. Without the decision rendered by the Commonwealth Court, there would be a tremendous disincentive for an injured worker to try going back to another, lighter, job. By offering the injured worker some protection, the Court is making the system work better as one designed truly to return the injured worker to productive society.